E-Discovery
A Survival Guide For New Lawyers, Part 1
David R. Cohen and Lynn Reilly
David Cohen is a partner in the Pittsburgh office of Kirkpatrick & Lockhart Preston Gates Ellis and co-chair of the firm’s e-Discovery Analysis & Technology (e-DAT) Practice Group. Lynn Reilly is a staff attorney in the firm’s Seattle office and e-DAT Group. Contact them at david.cohen@klgates.com and lynn.reilly@klgates.com.
You have been assigned to a major new litigation matter. The senior partner has just informed you that she is entrusting you with the client’s document collection and production, including e-discovery. What do you do now?
1. Panic. When you have a big problem, the first step is to admit it. Managing the record preservation, collection, review, and production process can be one of the most difficult, complicated, expensive, and thankless jobs in any litigation matter. It is a perilous area where pitfalls are plentiful, mistakes are frequent, and the possibility of sanctions is real. And when things go awry, as they often do, who do you think will be blamed? In the recent and noteworthy Qualcomm decision, even junior associates initially were found to be subject to sanctions for “monumental” discovery violations—though they were likely not the decision makers and likely would have had little ability to contradict partners’ instructions. Qualcomm Inc. v. Broadcom Corp., 2008 WL 66932 (S.D. Cal. Jan. 7, 2008).
2. Take a deep breath. You may have drawn the short straw, but now you must turn this into an opportunity to prove yourself. If you handle this right, you could be a hero. In order to make that happen, make this project your number one priority and plan to spend most of your time on it. Do not compound the problem by pushing this difficult assignment to the back of your desk or trying to pass along the work to an unfortunate paralegal. You have to take responsibility—and there is no time to lose.
3. Assess the project. Fact gathering will be an ongoing process, but at the outset you need to understand the basics:
  • What is the litigation all about? Understand the pleadings and the types of documents that are potentially relevant.
  • Is an effective legal hold already in place? If not, immediate action must be taken. Parties have an obligation to preserve potentially relevant evidence as soon as litigation is reasonably anticipated. Be sure to track and document, in detail, your legal hold efforts and all other preservation steps you take.
  • What can you learn about the court that may impact e-discovery? Are there applicable e-discovery rules in the jurisdiction (as there are in federal courts and some state courts)? Are there any local rules about e-discovery or does the presiding judge have particular practices he or she likes to follow?
  • Who is opposing counsel and have they yet served requests for production? Are opposing parties likely to face discovery challenges comparable to those your client faces? If so, this circumstance often leads to negotiation and reasonable accommodations. Or is this a case with a discovery imbalance (e.g., a class action or individual plaintiff) where one side will have most of the leverage and little incentive to agree to limits?
4. Gather expertise . Understanding the law of e-discovery is not enough; you will also need practical advice and assistance. Find out if your firm has an e-discovery guru or practice group, e-discovery/litigation support specialists, or paralegals who frequently are involved in the process. If your firm does not have in-house e-discovery resources, you owe it to yourself and your client to get partner approval to bring in outside expertise, in the form of a knowledgeable consultant and/or special e-discovery counsel. Beware of relying solely on the advice of the same e-discovery vendors whose profits depend on your choices.
Your next critical steps are to understand e-discovery (including the terminology), make a preliminary plan, educate the partners, and manage the process (including containing costs.) For details on these steps, read part two of E-Discovery in the July issue online at www.abanet.org/yld/publications.html.
 
READY RESOURCES
  • E-DISCOVERY FROM THE WAR ROOM! Program presented by the Tort, Trial & Insurance Section (cosponsored by YLD), Aug. 8, 2-5 p.m., at the Annual Meeting, Hilton New York. www.abanet.org/yld/annual08/details.shtml.
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